THE NATION : HIGH CRIMES

It Depends on How You Define 'Murder'

November 22, 1998|Sean Wilentz | Sean Wilentz, a professor of American history at Princeton University, is spending this year as a fellow at the Woodrow Wilson International Center for Scholars

WASHINGTON — Now that independent counsel Kenneth W. Starr has made his best case for the impeachment of President Bill Clinton, the House Judiciary Committee must struggle over a difficult question: Do Starr's charges rise to the Constitution's standards of "high crimes and misdemeanors"? Starr's critics assert that even if his accusations about perjury and obstruction of justice are true, they are not impeachable offenses, because they relate to private matters unconnected to Clinton's exercise of his executive powers. Starr and his defenders reply that the critics' standards for impeachment are too narrow and would permit a president guilty of all sorts of monstrous private offenses, including murder, to escape impeachment. "Virtually everyone agrees," Starr told the Judiciary Committee on Thursday, "that serious crimes such as murder and rape would be impeachable, even though they do not involve official duties."

No one, apart from a few conspiracy nuts, has accused Clinton of murder, so Starr and his defenders' point comes across as a bit academic. Speaking as one of Starr's critics, I would hope that any president charged with murder would be impeached. The trouble is, the one historical precedent we have points the other way. Incredibly, the Constitution's framers may well have thought that an executive charged with murder could escape impeachment. Or so it would seem from the example of the most notorious killing in early American political history: Vice President Aaron Burr's shooting of the former secretary of the Treasury, Alexander Hamilton.

In the summer of 1804, Burr was incensed at reports that Hamilton had insulted him, and he challenged his longtime political foe to a duel. The two met at Weehawken, N.J., across the Hudson River from Manhattan, on July 11, and, as every schoolchild knows, Burr felled Hamilton with a single shot. Hamilton's associates rowed what was left of their man back to New York, where he died the next afternoon. Burr, after returning to his own Manhattan estate, was stunned when news of Hamilton's death provoked shock and outrage from every political quarter. Fearing legal reprisals, he traveled south to hide out until the public fury died down.

By the time he reached his friend Pierce Butler's plantation in South Carolina, Burr was officially a fugitive from justice. In New York, which had outlawed dueling, he was charged with murder, though the charge was soon dropped. (Hamilton had died in New York, but he had been shot in another state, so the court substituted a misdemeanor charge against Burr for having uttered and sent a challenge.) A Bergen County, N.J., court, meanwhile, handed down and stuck by a charge of murder, though it was powerless to seek Burr's extradition.

After several weeks down south, where the code duello thrived and where anti-Hamiltonians considered Burr something of a hero, the vice president learned the clamor against him had abated. But instead of returning to Manhattan, which meant crossing New Jersey and risking arrest, Burr traveled to Washington, where, unimpeded, he strode up Capitol Hill and assumed his official vice-presidential duties as presiding officer in the U.S. Senate.

"This is, I believe, the first time that ever a vice president appeared in the Senate the first day of a session," the astonished New Hampshire Federalist William Plumer wrote. "It certainly is the first time, and God grant it may be the last, that ever a man, so justly charged with such an infamous crime, presided in the American Senate." Yet, neither Plumer nor, as far as I can determine, anyone else moved to impeach Burr, who peaceably served out the remainder of his term as vice president, hobnobbing with President Thomas Jefferson, Secretary of State James Madison and other worthies. There was an impeachment trial during that session of the Senate, one that led to an acquittal, but it involved the Federalist Supreme Court Justice Samuel Chase, for his alleged persecution of Jefferson's supporters. Who presided over Chase's trial? Vice President Burr.

The legal charges against Burr eventually faded away and were forgotten. He would go on to even greater infamy for attempting to set up a country of his own in the nation's western territories, for which he was tried for treason. By then, however, he had set the precedent relevant to our current distemper.

There was, to be sure, no national consensus in 1804 about whether killing someone in a duel constituted murder. Still, an American court charged Burr with that terrible crime. Under the Constitution, the grounds for impeaching a president and a vice president are identical. If, then, a vice president, surrounded by many of the Constitution's framers, could be charged with murder and escape impeachment, why are we considering impeaching a president who has been accused--not by a court but by an independent counsel--with lying under oath and other crimes connected to covering up his love life?

Somewhere, the shade of Burr, himself a notorious ladies' man, is laughing his head off.